Citation Nr: 0947242
Decision Date: 12/14/09 Archive Date: 12/24/09
DOCKET NO. 07-07 009 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUES
1. Whether new and material evidence has been received to
reopen a claim for service connection for a macular hole of
the right eye, to include as secondary to the service-
connected disability of amblyopia in the left eye, secondary
to anisometropia.
2. Entitlement to service connection for skin cancer, to
include as due to exposure to ionizing radiation.
3. Entitlement to a disability rating in excess of 20
percent for amblyopia in the left eye, secondary to
anisometropia.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Saira Sleemi, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1951 to
January 1954.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a March 2006 rating decision of the Roanoke,
Virginia Department of Veterans' Affairs (VA) Regional Office
(RO).
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The issues of service connection for skin cancer, to include
as due to exposure to ionizing radiation and entitlement to a
disability rating in excess of 20 percent for amblyopia in
the left eye, secondary to anisometropia, are addressed in
the REMAND portion of the decision below and are REMANDED to
the RO via the Appeals Management Center (AMC), in
Washington, DC.
FINDINGS OF FACT
1. An April 1995 RO decision denied service connection for a
macular hole of the right eye, to include as secondary to the
service-connected disability of amblyopia in the left eye,
secondary to anisometropia, finding that no new and material
evidence had been received.
2. The evidence added to the record since the April 1995 RO
decision was previously submitted to agency decision makers,
is cumulative and redundant and, by itself or when considered
with previous evidence of record, does not relate to an
unestablished fact necessary to substantiate the claim and
does not raise a reasonable possibility of substantiating the
claim for service connection for a macular hole of the right
eye, to include as secondary to the service-connected
disability of amblyopia in the left eye, secondary to
anisometropia.
CONCLUSIONS OF LAW
1. The April 1995 RO decision that denied service connection
for a macular hole of the right eye, to include as secondary
to the service-connected disability of amblyopia in the left
eye, secondary to anisometropia, was not appealed and thus
became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R.
§ 3.104(a) (2009).
2. New and material evidence has not been received to reopen
a claim of service connection for a macular hole of the right
eye, to include as secondary to the service-connected
disability of amblyopia in the left eye, secondary to
anisometropia. 38 U.S.C.A. § 5108, 7105(d) (West 2002); 38
C.F.R. § 3.156(a) (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act (VCAA)
The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106,
5107, and 5126, was signed into law on November 9, 2000.
Implementing regulations were created, codified at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, and 3.326 (2009).
VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38
C.F.R. § 3.159(b) must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; and
(3) inform the claimant about the information and evidence
that the claimant is expected to provide. The Board notes
that a "fourth element" of the notice requirement, requesting
the claimant to provide any evidence in the claimant's
possession that pertains to the claim, was recently removed
from the language of 38 C.F.R. § 3.159(b)(1). See 38 C.F.R.
§ 3.159(b)(1) (2009).
The United States Court of Appeals for Veterans Claims
(Court) held in Pelegrini v. Principi, 18 Vet. App. 112
(2004) that to the extent possible the VCAA notice, as
required by 38 U.S.C.A. § 5103(a) (West 2002), must be
provided to a claimant before an initial unfavorable decision
on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-
20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir.
2006).
In the recent case Shinseki v. Sanders, 129 S.Ct. 1696
(2009), the U.S. Supreme Court held that the Federal
Circuit's blanket presumption of prejudicial error in all
cases imposed an unreasonable evidentiary burden upon VA.
Rather, in Shinseki v. Sanders, the Supreme Court suggested
that determinations concerning prejudicial error and harmless
error should be made on a case-by-case basis. Id. As such,
in conformance with the precedents set forth above, on
appellate review the Board must consider, on a case-by-case
basis, whether any potential VCAA notice errors are
prejudicial to the claimant.
Prior to the initial adjudication of the Veteran's claim for
whether new and material evidence has been received to reopen
a claim for service connection in the March 2006 rating
decision, he was provided notice of the VCAA in June 2005.
The VCAA letter indicated the types of information and
evidence necessary to substantiate the claim, and the
division of responsibility between the Veteran and VA for
obtaining that evidence, including the information needed to
obtain lay evidence and both private and VA medical treatment
records. Thereafter, the Veteran received additional notice
in March 2006, pertaining to the downstream disability rating
and effective date elements of his claim, and was furnished a
Statement of the Case in February 2007. Dingess v.
Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and
Pelegrini, both supra.
In addition, the June 2005 letter informed the Veteran:
You were previously denied service connection for a
macular hole of the right eye. You were notified
of the decision on August 30, 1990. The appeal
period for this decision has expired and the
decision is final. In order for us to reconsider
this issue, we need "new and material evidence."
To qualify as new, the evidence must be submitted
to VA for the first time. Although VA will make
reasonable efforts to help you obtain currently
existing evidence, we cannot provide a medical
examination or obtain a medical opinion until your
claim is successfully reopened.
In order to qualify as material, the additional
existing evidence must pertain to the reason your
claim was previously denied.
Your claim was previously denied because there was
no evidence of a right eye disability being
incurred in or aggravated during military service
nor does the evidence establish a right eye
disability secondary to service-connected
amblyopia. Therefore the evidence you submit must
relate to this fact.
New and material evidence must raise a reasonable
possibility of substantiating your claim. The
evidence can not simply be repetitive or cumulative
of the evidence we had when we previously denied
your claim.
In the context of a claim to reopen, the VCAA also requires
the Secretary to look at the bases for the denial in the
prior decision and to respond with a notice letter that
describes what evidence would be necessary to substantiate
that element or elements required to establish service
connection that were found insufficient in the previous
denial. The veteran must also be notified of what
constitutes both "new" and "material" evidence to reopen the
previously denied claim. See Kent v. Nicholson, 20 Vet. App.
1 (2006). As describe above, the Veteran was notified of the
Kent requirements in June 2005 as it relates to his service
connection claim for macular hole of the right eye, to
include as secondary to the service-connected disability of
amblyopia in the left eye, secondary to anisometropia.
The Veteran's service personnel records are not available and
are presumed destroyed by the 1973 fire at the National
Personnel Records Center (NPRC). The Board is aware that in
such situations, it has a heightened obligation to explain
its findings and conclusions and carefully consider the
benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet.
App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365,
367 (1991).
When service records are missing, VA also has a duty to
search alternate sources of service records. Washington v.
Nicholson, 19 Vet. App. 362 (2005). In this case, a July
2005 response from the NPRC notified the RO that the
Veteran's service personnel records were fire related and the
information requested could not be reconstructed. Moreover,
there is no allegation or indication that there were any
service personnel records relating the Veteran's right eye
disability to his active service. The RO issued a formal
finding of unavailability of these records in December 2005.
All relevant evidence necessary for an equitable resolution
of the issue on appeal has been identified and obtained, to
the extent possible. The evidence of record includes service
treatment records, copies of service personnel records, a
formal finding of the unavailability of the records of
radiation risk activity and service personnel records,
private medical records, VA outpatient treatment reports, VA
examinations and statements from the Veteran and his
representative. The Veteran has not indicated that he has
any further evidence to submit to VA, or which VA needs to
obtain. There is no indication that there exists any
additional evidence that has a bearing on this case that has
not been obtained. The Veteran and his representative have
been accorded ample opportunity to present evidence and
argument in support of his appeal. All pertinent due process
requirements have been met. See 38 C.F.R. § 3.103 (2009).
Pertinent Laws and Regulations
An April 1995 RO decision denied service connection for a
macular hole of the right eye, to include as secondary to the
service-connected disability of amblyopia in the left eye,
secondary to anisometropia, finding that no new and material
evidence had been received. The Veteran did not appeal and
the April 1995 RO decision is final. 38 U.S.C.A. § 7105;
38 C.F.R. § 3.104(a) (2009). The Veteran was originally
denied service connection for a macular hole of the right eye
by an August 1990 rating decision, finding that there was no
evidence of a right eye disability being incurred in or
aggravated during military service and no evidence
establishing a right eye disability secondary to service-
connected amblyopia.
If a claim of entitlement to service connection has been
previously denied and that decision became final, the claim
can be reopened and reconsidered only if new and material
evidence is received with respect to that claim. 38 U.S.C.A.
§ 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).
New evidence means existing evidence not previously submitted
to agency decisionmakers. Material evidence means existing
evidence that, by itself or when considered with previous
evidence of record, relates to an unestablished fact
necessary to substantiate the claim. New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. 38
C.F.R. § 3.156(a) (2009).
VA must review all of the evidence received since the last
final decision in order to determine whether the claim may be
reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999).
For purposes of determining whether new and material evidence
has been received to reopen a finally adjudicated claim, the
recently submitted evidence will be presumed credible. See
Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per
curiam) (holding that the "presumption of credibility"
doctrine continues to be binding precedent).
Analysis
The evidence of record at the time of the April 1995 RO
decision included service treatment reports, copies of
service personnel records submitted by the Veteran, private
medical records, VA examinations from August 1985 and January
1995 and a May 1986 VA outpatient treatment report. Service
treatment reports reflect no findings of a right eye
disability at any time during the Veteran's active service.
Copies of service personnel records, submitted by the
Veteran, reflect no incidents of an injury to the right eye
during active service. The private medical records, VA
examinations from August 1985 and January 1995 and the May
1986 VA outpatient treatment report reflect the Veteran has
been treated for and diagnosed with a current right eye
disability, including legal blindness, right eye retinol
detachment and a macular hole in the right eye.
The new evidence of record submitted after the April 1995 RO
decision includes VA outpatient treatment reports from
January 1995 to August 2006, private medical records from
June 1994 to April 2005, a July 2005 VA examination and a
January 2007 VA nexus opinion. These records reflect the
Veteran has been treated for and diagnosed with a current
right eye disability including legal blindness, decreased
vision, cataracts, nuclear sclerosis, senile macular
degeneration, old macular hole in right eye, elevated
intraocular pressure, macular hole in right eye, pre-retinol
fibrosis and posterior vitreous detachment. In the January
2007 VA nexus opinion, a VA examiner concluded that a right
eye macular hole or cataract was not caused by the left eye
disability, which was amblyopia.
The Board finds that the newly received evidence, when
considered in conjunction with the previous evidence of
record, does not relate to an unestablished fact regarding a
right eye disability being incurred in or aggravated during
military service or a right eye disability being secondary to
service-connected amblyopia of the left eye, to substantiate
the Veteran's claim for service connection. Although new,
the evidence does not relate to unestablished facts necessary
to substantiate the claim for a macular hole of the right eye
in a way that would raise a reasonable possibility of
substantiating the previously denied claim. In this regard,
the Board notes that the newly received evidence reflects a
medical diagnosis of a current disability of the right eye
which had been previously established in the record.
Moreover, the January 2007 VA examiner's opinion, that a
right eye macular hole or cataract was not caused by the left
eye amblyopia, does not establish medical evidnence of a
nexus between the Veteran's service or service-connected
disability and his current right eye disability.
Therefore, as the evidence is considered cumulative and
redundant of the evidence of record at the time of the final
April 1995 RO decision and does not furnish a reasonable
possibility of substantiating the Veteran's claim for service
connection for macular hole of the right eye, to include as
secondary to the service-connected disability of amblyopia,
in the left eye, secondary to anisometropia, this claim is
not reopened. See 38 C.F.R. § 3.156(a).
ORDER
New and material evidence not having been received, service
connection for service connection for macular hole of the
right eye, to include as secondary to the service-connected
disability of amblyopia, in the left eye, secondary to
anisometropia, is not reopened.
REMAND
The Board finds that there is a further VA duty to assist the
Veteran in developing evidence pertinent to his claims for
service connection for skin cancer, to include as due to
exposure to ionizing radiation, and entitlement to a
disability rating in excess of 20 percent for amblyopia in
the left eye, secondary to anisometropia. 38 U.S.C.A. §
5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2009).
Where the record before the Board is inadequate to render a
fully informed decision, a remand to the RO is required in
order to fulfill its statutory duty to assist the Veteran to
develop the facts pertinent to the claim.
Service Connection for Skin Cancer
As noted above, the Veteran's service personnel records,
including any information regarding radiation risk activity,
are not available and are presumed destroyed by the 1973 fire
at the NPRC. The Board is aware that in such situations, it
has a heightened obligation to explain its findings and
conclusions and carefully consider the benefit-of-the-doubt
rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992);
O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). When
service records are missing, VA also has a duty to search
alternate sources of service records. Washington v.
Nicholson, 19 Vet. App. 362 (2005).
In this case, in a July 2005 response to a request for the
Veteran's service personnel records, the NPRC notified the RO
that these records were fire related and the information
requested could not be reconstructed. Based upon this
information, the RO issued a formal finding of unavailability
of any records of radiation risk activity in December 2005.
In a June 2005 VA form RRAIS (JF), the Veteran reported that
he sustained exposure to radiation during active military
duty in the summer of 1953 in Desert Rock, Nevada. The
Veteran also reported that he had forgotten the unit or
organization he was with at that time. He did report
receiving a film badge. The Veteran stated that he was
stationed in a trench 2000 yards from ground zero at the time
of the explosion. He also reported that other military
personnel with him at this time included his brother, [redacted]
[redacted].
In a December 2005 NA form 13055, Request for Information
Needed to Reconstruct Medical Data, the Veteran reported that
he was assigned to the 916th Medical Ambulance (AMB) Company
in Camp Pickett, Virginia. He also noted at the end of the
form "spring 1953."
The copies of service personnel records submitted by the
Veteran and his DD form 214 indicate that his most
significant assignment was to the 403rd Evacuation Hospital.
The Veteran's service treatment reports also indicate that he
was assigned to the 403rd Evacuation Hospital from at least
March 1953 until his separation from active service in
January 1954.
VA outpatient treatment reports from January 1995 to August
2006 and an August 1995 private medical record reflect that
the Veteran was treated for and diagnosed with basal cell
cancer of the left ear, neoplasms of the skin, erythematous
skin lesion of the left lateral shoulder and actinic
keratosis versus superficial skin cancer with no evidence of
melanoma.
In the March 2006 rating decision and April 2007 Statement of
the Case, the RO reported that VA form RRAIS (JF) and NA form
13055 were sent to the Veteran with respect to his claim for
service connection for skin cancer, to include as due to
exposure to ionizing radiation. However, the record does not
reflect that an attempt to obtain the Veteran's unit
histories was performed.
The Board also finds that skin cancer is an enumerated
radiogenic disease for presumptive purposes under 38 C.F.R. §
3.311(b)(2).
Given the VA's duty to search alternate sources of service
records when service records are missing and, in considering
the evidence that skin cancer is an enumerated radiogenic
disease for presumptive purposes under 38 C.F.R. §
3.311(b)(2), the Veteran's reports that he was assigned to
the 916th Medical Ambulance (AMB) Company in Camp Pickett,
Virginia, the assignment to the 403rd Evacuation Hospital
from at least March 1953 to January 1954 and the Veteran's
reports that he sustained exposure to radiation during active
military duty in the spring or summer of 1953 in Desert Rock,
Nevada, an attempt to obtain the unit history for the Veteran
is necessary. Therefore, the RO should obtain the Veteran's
unit history in order to verify whether the Veteran was
associated with radiation exposure in Desert Rock, Nevada in
the spring or summer of 1953, whether his unit was stationed
in the Desert Rock, Nevada at any time during spring or
summer of 1953 and whether his unit was exposed to ionizing
radiation during this period.
For claims involving Veterans who participated in atmospheric
weapons testing, dose data will be requested from the
Department of Defense. 38 C.F.R. § 3.311(2). This data will
then be forwarded to the Under Secretary for Health, who will
be responsible for preparation of a dose estimate, to the
extent feasible, based on available methodologies. 38 C.F.R.
§ 3.311(a)(2)(iii) (2009).
A Disability Rating in Excess of 20 Percent for Amblyopia in
the Left Eye, Secondary to Anisometropia
The Veteran, through his representative, contends that the
most recent VA examination for the left eye was conducted in
July 2005, over four years earlier, and that when a
disability is worse than when originally rated a new VA
examination should be provided, indicating his symptoms have
worsened since the last VA examination. See Informal Hearing
Presentation, October 2009.
The record reflects that, following the July 2005 VA
examination, the additional medical evidence of record
included VA outpatient treatment reports from August 2005 to
December 2006 and a January 2007 VA opinion regarding the
relationship between the Veteran's right eye disability and
his left eye disability.
The July 2005 VA examination demonstrated the Veteran had
best corrected far and near visual acuity of 20/100 in the
left eye and 20/400 in the right eye. The examiner noted
that Goldman visual field test was not indicated for the left
eye as there was no clinical evidence suggesting visual field
impairment. The Veteran was diagnosed with cataracts and
refractive amblyopia in the left eye and the examiner found
that the amblyopia accounted for the reduced visual acuity in
the left eye.
VA outpatient treatment reports from August 2005 to December
2006 reflect that the Veteran was treated for and diagnosed
with bilateral cataracts, greater in the left than the right,
for which he underwent surgery in November 2006.
The Board opines that further findings relating to the
Veteran's left eye amblyopia are needed to evaluate the
current severity of this disability. See 38 U.S.C.A. § 5103A
(West 2002 & Supp. 2009). As the Veteran was last examined
at the VA in July 2005, approximately four years ago, the
Veteran's statements indicating a worsening of symptoms and
the medical evidence of surgery on the eyes in November 2006,
the Board finds that a current VA examination is necessary to
adequately evaluate the claim. See Caffrey v. Brown, 6 Vet.
App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991).
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited
handling is requested.)
1. Please obtain the Veteran's unit
histories in order to verify the nature,
location, and duration of the Veteran's
service during the spring and summer of
1953, to include the following:
(a). Whether the Veteran was attached to
a unit which was involved in any nuclear
atmospheric testing in Desert Rock, Nevada
in the spring or summer of 1953.
(b). Whether the Veteran's unit,
including the 916th Medical Ambulance
(AMB) Company and the 403rd Evacuation
Hospital, was stationed in the Desert
Rock, Nevada and had been associated any
nuclear atmospheric testing in the spring
or summer of 1953.
2. After associating with the claims
folder all available records received
pursuant to the above-requested
development, the RO should develop the
claim for service connection for the
Veteran's skin cancer in accordance with
the provisions of 38 C.F.R. § 3.311.
3. The RO/AMC should schedule the Veteran
for VA optometry (eye) examination to
determine the current severity of his
service-connected left eye amblyopia. The
claims folder must be made available to
and reviewed by the examiner in connection
with the examination, to include a copy of
this remand. All tests deemed necessary
should be conducted. The examiner should
provide a diagnosis of any eye disorders
found. The examiner is asked to comment
on the current left eye amblyopia
symptomatology.
4. After the development requested above
has been completed to the extent possible,
the record should again be reviewed. If
the benefits sought on appeal remain
denied, the Veteran and his
representative, if any, should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto. The case should then be returned
to the Board for further appellate
consideration.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs